Jamie Lee Ponsaran v. Lyndsey Anker

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parentage of )
J.D.W. and J.O.W. ) No. 80497-9-I
)
JAMIE LEE PONSARAN, ) DIVISION ONE
)
Appellant, ) PUBLISHED OPINION
)
v. )
)
LYNDSEY ANKER, )
)
Respondent, )
and )
)
JUSTIN WILLIAMS, )
)
Defendant. )
)
SMITH, J. — In this case of first impression, we examine the standards for
determining whether a petition for de facto parentage may proceed to a full
adjudication under RCW 26.26A.440, Washington’s de facto parentage statute.
That statute, which was enacted in 2018 as part of an updated Washington
Uniform Parentage Act (WUPA), chapter 26.26A RCW, requires the trial court to
make an initial determination of whether the petition and any response raise
“disputed facts material to the issue of standing.”1 We hold today that the proper
focuses of that initial determination are whether the petitioner unequivocally
parented the child as part of the child’s family unit and whether that parent-child
1 RCW 26.26A.440(3)(c).
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80497-9-I/2
relationship was consented to and fostered by a legal parent. We hold further
that because the response to Jaime Ponsaran’s petition for de facto parentage
did not raise any disputed facts material to the issue of standing and because
Ponsaran alleged sufficient facts, if proved, to satisfy each substantive element
of de facto parentage, the trial court erred by dismissing his petition. Therefore,
we reverse and remand for trial.
FACTS
On March 26, 2019, Ponsaran filed a verified petition to be adjudicated a
de facto parent of J.D.W. and J.O.W., whose legal parents are Lyndsey Anker,
the children’s mother, and Justin Williams, the children’s biological father. In his
petition, Ponsaran alleged that he had known J.D.W. since he was 18 months old
and J.O.W. since her birth. Ponsaran alleged that he and Anker lived together
with the children from December 2012 (when J.O.W. was about 3 months old
and J.D.W. was about 21 months old) until May 2016, “and again for a number of
months in 2017.” He alleged that while living with the children, he “bonded with
[them] and they view me as their dad.” He alleged further:
The children call me daddy. [Anker] refers to me as dad when
speaking to the children or to third parties[. ] I am registered at
school as their father and whenever we signed up for events I was
listed as their father. Both [Anker] and I have posted photos of me
with the children with references to me as “daddy.”
He also alleged that even when he and Anker did not live together, he “spent
between 2 and 5 nights per week with the children and spoke to them daily.”
Ponsaran alleged that he “took responsibility for the children’s parenting,
including but not limited to meals, baths, toilet training, [and] bed time routine”
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when they were “little,” and that as they grew older, he “took them to and from
school and daycare, scheduled and took them to activities and was with them in
the hospital when that was necessary.” Ponsaran alleged that he held the
children out as his own, that “[u]p until recently [Anker] fully supported my
relationship with the children,” and that Anker “routinely referred to me as the
children’s father and was aware the children always called me that.” Ponsaran
alleged that it was in the children’s best interest for their relationship with him to
continue, asserting, “I am their father. They have no one else who has taken on
that role a[n]d I have been here for them for the past. They love me and are
being harmed right now because they are unable to spend time with me.”
After Ponsaran filed his petition, the trial court issued a case scheduling
order setting a deadline for a “court review” at which “the judge will review the
petition and any response filed to determine if the case should move forward.”
Williams later waived notice of the court review.
Anker responded to Ponsaran’s petition on May 1, 2019, and asked the
court to deny Ponsaran’s petition. She alleged in her verified response that
Ponsaran “liked to spoil the children with toys and playing” but that “[h]e never
helped me with any of the children’s responsibilities such as paying for childcare,
insurance, groceries, rent or utilities.” Anker alleged that Ponsaran “imposed
himself on [Anker] and [her] family.” According to Anker, Ponsaran “took [the
children] to do fun things and was available during times [Anker] was at work and
school because his schedule was flexible and he seemed to have an unlimited
supply of money and time.” With regard to the best interests of the children,
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Anker alleged:
[Ponsaran] enjoys the idea of being a fun dad, spoiling them [by]
buying toys and taking them to do fun things, he enjoys the
attention he gets from others by pretending to be a great “father”.
All of the other responsibilities a[s] far as raising the children to be
functional adults is all up to me, he directly undermines me and the
rules and restrictions I have set forth to protect the children. He
has complete disregard for my wishes and to be frank despises me.
While in his care in the past year the children have reported to me
that they have witnessed him being intimate with at least three
different women, they have seen him in the kitchen sticking needles
in his stomach, they talk about the stacks of money he keeps in his
closet. My daughter reported to me that she took a shower with
one of the women, with their clothes on but this to me is extremely
disrespectful seeing as she is a complete stranger to me. They
have witnessed yelling and aggressive behavior towards me, my
mother and people driving on the road. His lack of stability
mentally, physically, emotionally and financially are major concerns
of mine. He hasn’t had a stable documented job since I’ve known
him. He associates and takes the children around unsafe people
and situations. His continued abuse of alcohol, narcotics and
steroids make[s] him unsafe to be around. And his lack of care for
any boundaries with the law and me as a mother, make him
impossible to trust. At this point I feel he is using my children as
pawns to try to inflict as much pain as possible to me and once
again control my life.
The people in our immediate circle have all commented to me on
how the children’s behavior has changed positively since
[Ponsaran]’s recent absence, and I feel the same. Their demeanor
is more calm. They are more considerate, more caring and more
loving towards one another and to me. They are excelling at life
and will continue to do so without the instability, disrespect,
aggressive behavior and poor choices they witnessed by someone
they once looked up to.
In her response, Anker also indicated that she had petitioned for a protection
order. To that end, on May 20, 2019, a commissioner entered a one-year order
protecting Anker, J.D.W., and J.O.W. from Ponsaran. The protection order was
expressly made “subject to any parenting plan / further order” in the pending de
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facto parentage proceeding.
On August 5, 2019, Ponsaran filed a request for court review regarding his
petition. Together with his request, Ponsaran filed a notice for hearing setting his
request for review for consideration without oral argument on August 20, 2019.
Ponsaran also filed multiple witness declarations describing Ponsaran’s
interactions with the children.
On August 16, 2019, Anker filed a legal memorandum requesting
dismissal of Ponsaran’s petition. Anker also filed her own declaration and
attached copies of her earlier petition for a protection order as well as certain
documents filed in the protection order proceeding.
On August 21, 2019, the trial court entered an “Order After Review of
Petition for De Facto Parentage” dismissing Ponsaran’s petition. In its order, the
court concluded that Ponsaran “has not alleged sufficient facts to meet the
requirements for a finding of de facto parentage.” (Emphasis omitted.) The court
also entered the following “[o]ther [f]indings”:
RCW 26.26A.440 requires that [Ponsaran] demonstrate that the
relationship between him and the children is in the best interest of
the children. In her Response to the Petition for De Facto
Parentage, dated May 1, 2019, [Anker] states that [Ponsaran] has a
complete disregard for her wishes and despises her. She states
that the children have witnessed [Ponsaran] being aggressive
toward her and her mother. She states that [Ponsaran] lacks
mental, physical, emotional and financial stability, and that she has
never known him to have a stable job. She states that [Ponsaran]
abuses alcohol, narcotics and steroids and that it is not safe for the
children to be around him. She states that [Ponsaran] is using the
children to try to control her. Finally, she states that the children’s
behavior has improved, and that they are kinder and more
considerate since not having contact with [Ponsaran]. In his
declaration dated July 12, 2019, [Ponsaran] does not address any
of [Anker]’s allegations, and instead states that he has “no interest
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No. 80497-9-I/6
in speaking publicly about [his] private life. . .” [Ponsaran]
submitted evidence, including many declarations, regarding his
close relationship with the children. However, none of this
evidence specifically addresses the mother’s allegations.
[Ponsaran] further indicates in his declaration that [Anker] obtained
an Order of Protection against him. The court takes judicial notice
of the Order for Protection . . . . The Order for Protection protects
both the mother and the children, and prohibits Mr. Ponsaran from
having any contact with the children “subject to any parenting
plan/further order in . . . [the de facto parentage action].” The court
finds that [Ponsaran] has not shown by a preponderance of the
evidence that [it] is in the best interest of the children to continue a
relationship with him based on [Anker]’s unrefuted allegations about
his behavior.”
(Some alterations in original.) Ponsaran appeals.
ANALYSIS
Dismissal of Ponsaran’s Petition
Ponsaran contends that the trial court erred by dismissing his petition for
de facto parentage. We agree.
Standard of Review and Legal Standards
We examine for the first time the process prescribed by RCW 26.26A.440,
enacted in 2018 as part of an updated WUPA,2 for adjudicating claims of de facto
parentage. What that process requires is an issue of statutory interpretation that
we review de novo. Hernandez v. Edmonds Memory Care, LLC, 10 Wn. App. 2d
869, 874, 450 P.3d 622 (2019). Our “fundamental objective in determining what
a statute means is to ascertain and carry out the legislature’s intent.” Durant v.
State Farm Mut. Auto. Ins. Co., 191 Wn.2d 1, 8, 419 P.3d 400 (2018). “[I]f the
statute’s meaning is plain on its face, then the court must give effect to that plain
2 See LAWS OF 2018, ch. 6, § 509.
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No. 80497-9-I/7
meaning as an expression of legislative intent.” Dep’t of Ecology v. Campbell &
Gwinn, LLC, 146 Wn.2d 1, 9-10, 43 P.3d 4 (2002). To discern a statute’s plain
meaning, we consider the text of the provision in question and the context of the
statutory scheme as a whole. Campbell & Gwinn, 146 Wn.2d at 10-11.
“Where a statute is susceptible of multiple reasonable interpretations after
the plain meaning analysis, it is ambiguous, and we must turn to extrinsic
evidence such as legislative history, common law precedent, or canons of
construction to determine the legislature’s intent.” State v. Pittman, 185 Wn.
App. 614, 620, 341 P.3d 1024 (2015). That said, where, as here, the statute at
issue is based on a uniform act that (1) was promulgated by the Uniform Law
Commission (ULC) and (2) mandates that consideration be given to the need to
promote uniformity among the states that enact it,3 we may look to the ULC’s
official comments to construe the statute even when it is not ambiguous. See
Townsend v. Quadrant Corp., 153 Wn. App. 870, 878 n.7, 224 P.3d 818 (2009)
(construing Washington’s version of the uniform arbitration act, chapter 7.04A
RCW), aff’d on other grounds, 173 Wn.2d 451, 268 P.3d 917 (2012); Lewis River
Golf, Inc. v. O.M. Scott & Sons, 120 Wn.2d 712, 717, 845 P.2d 987 (1993)
(construing Washington’s version of the Uniform Commercial Code, Title 62A
RCW).
3 The WUPA is based on the 2017 version of the Uniform Parentage Act.
See H.B. REP. ON ENGROSSED SUBSTITUTE S.B. 6037, at 3, 65th Leg., Reg. Sess.
(Wash. 2018). And RCW 26.26A.900 provides, “In applying and construing this
uniform act, consideration must be given to the need to promote uniformity of the
law with respect to its subject matter among states that enact it.”
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Standing To Proceed to Full Adjudication Under
Washington’s De Facto Parentage Statute
RCW 26.26A.440 is based on section 609 of the Uniform Parentage Act
(UPA (2017)). It provides a statutory path to legal parentage for de facto parents,
who, loosely speaking, are adults who, with the consent and encouragement of a
legal parent, have formed a strong parent-child relationship with a child. See
UNIF. PARENTAGE ACT (2017) § 609 cmt., 98 U.L.A. 80-81 (2019) (“Under this new
section, an individual who has functioned as a child’s parent for a significant
period such that the individual formed a bonded and dependent parent-child
relationship may be recognized as a legal parent.”). Under RCW 26.26A.440, an
individual claiming to be a de facto parent of a child may “commence a
proceeding to establish parentage of [the] child . . . [b]efore the child attains
eighteen years of age[ ] and . . . [w]hile the child is alive.” RCW 26.26A.440(2).
The statute also provides that “[i]n a proceeding to adjudicate parentage of an
individual who claims to be a de facto parent,” the petitioner, i.e., the individual
claiming status as a de facto parent, must establish each of the following seven
elements:
(a) The individual resided with the child as a regular member
of the child’s household for a significant period;
(b) The individual engaged in consistent caretaking of the
child;
(c) The individual undertook full and permanent
responsibilities of a parent of the child without expectation of
financial compensation;
(d) The individual held out the child as the individual’s child;
(e) The individual established a bonded and dependent
relationship with the child which is parental in nature;
(f) Another parent of the child fostered or supported the
bonded and dependent relationship required under (e) of this
subsection; and
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(g) Continuing the relationship between the individual and
the child is in the best interest of the child.
RCW 26.26A.440(4). If the petitioner demonstrates each of the above seven
substantive elements by a preponderance of the evidence, then “the court shall
adjudicate the [petitioner] to be a parent of the child.” RCW 26.26A.440(4).
The provision primarily at issue in this case is subsection (3) of the statute,
which dictates when a petition for de facto parentage can proceed to a full
adjudication. Specifically, RCW 26.26A.440(3) sets forth
[t]he following rules govern[ing] standing of an individual who
claims to be a de facto parent of a child to maintain a proceeding
under this section:
(a) The individual must file an initial verified pleading alleging
specific facts that support the claim to parentage of the child
asserted under this section. . . .
(b) An adverse party, parent, or legal guardian may file a
pleading in response to the pleading filed under (a) of this
subsection. A responsive pleading must be verified . . . .
(c) Unless the court finds a hearing is necessary to
determine disputed facts material to the issue of standing, the court
shall determine, based on the pleadings under (a) and (b) of this
subsection, whether the individual has alleged facts sufficient to
satisfy by a preponderance of the evidence the [elements of de
facto parentage]. If the court holds a hearing under this subsection,
the hearing must be held on an expedited basis.
What is clear from the plain language of this statute is that the trial court
must determine as a threshold matter, without the parties needing to raise the
issue, whether a petition may proceed to a full adjudication. Additionally, the
statute mandates a multi-step process for determining whether a petition can
proceed to a full adjudication: First, the petitioner must file a verified, or sworn,4
4 See BLACK’S LAW DICTIONARY 1793 (10th ed. 2014) (defining “verify” as
“[t]o confirm or substantiate by oath or affidavit; to swear to the truth of”).
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No. 80497-9-I/10
pleading alleging “specific facts” supporting each of the seven statutory elements
of de facto parentage. RCW 26.26A.440(3)(a). Next, an adverse party may file a
verified response. RCW 26.26A.440(3)(b). The court then determines based on
these verified pleadings whether there are “disputed facts material to the issue of
standing.” RCW 26.26A.440(3)(c). If so, the court must convene an expedited
hearing “to determine” those facts. RCW 26.26A.440(3)(c). Finally, the statute is
clear that to proceed to a full adjudication, the petitioner must, at a minimum,
“allege[ ] facts sufficient to satisfy by a preponderance of the evidence the
requirements of subsection (4)(a) through (g) of this section,” i.e., the seven
substantive elements of de facto parentage. RCW 26.26A.440(3)(c). In other
words, to proceed to a full adjudication, the petition must “allege[ ] facts sufficient
to satisfy by a preponderance of the evidence [the elements of de facto
parentage]” even if the petition and response present no “disputed facts material
to the issue of standing.” RCW 26.26A.440(3)(c). It follows then that if there are
“disputed facts material to the issue of standing,” after determining those facts,
the court must still consider whether the facts as determined by the court,
combined with the undisputed facts in the petition, together could constitute facts
sufficient to satisfy each element of de facto parentage. If so, the petition may
proceed to a full adjudication.
It is apparent from the plain language of the statute that much turns on
whether, as an initial matter, the petition and response present “disputed facts
material to the issue of standing.” RCW 26.26A.440(3)(c). Yet the statute does
not expressly state the requirements for standing in the context of a de facto
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No. 80497-9-I/11
parentage proceeding, and no single reasonable meaning emerges from the text
or context of the statute. See West v. Seattle Port Comm’n, 194 Wn. App. 821,
826, 380 P.3d 82 (2016) (“Questions of standing under Washington law begin
with the statutes themselves.”). “Standing” arguably could be interpreted to refer
merely to the requirements in RCW 26.26A.440(1), which state that “[a]
proceeding to establish [de facto] parentage . . . may be commenced only by an
individual who: (a) Is alive when the proceeding is commenced; and (b) Claims to
be a de facto parent of the child.” But neither party argues that the standing
threshold can be met merely by showing that the petitioner is alive and claims to
be a de facto parent. And, such a low bar to standing would be inconsistent with
the purpose of the statute, which, according to the official comments, envisions a
“heightened standing requirement.” UPA (2017) § 609 cmt. (emphasis added).
Furthermore, the statute provides no additional guidance in its text or scheme to
inform our interpretation. We therefore conclude that RCW 26.26A.440(3)(c) is
ambiguous with regard to the requirements of standing and, thus, is also
ambiguous with regard to when “disputed facts material to the issue of standing”
exist. Cf. Puget Soundkeeper All. v. Dep’t of Ecology, 191 Wn.2d 631, 644, 424
P.3d 1173 (2018) (“Language is unambiguous if it has only one reasonable
interpretation.”).
To this end, Anker contends that “to confer standing, the court is to look to
the seven factors listed in [RCW 26.26A.440(4)(a-g)] . . . and decide if the
petitioner has demonstrated by a preponderance of the evidence that he has met
all these factors.” In other words, Anker asserts that to proceed to a full
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adjudication, the petitioner must prove all seven substantive elements of de facto
parentage and, thus, a disputed fact is “‘material to the issue of standing’” if it is
material to any of those seven elements. Ponsaran, on the other hand, contends
that “the petitioner should be, at this preliminary phase, afforded the benefit of
the doubt” and that the court should treat the initial inquiry under
RCW 26.26A.440(3)(c) as it would a CR 12(b)(6) motion. Thus, Ponsaran
argues, in determining whether a petition may proceed to a full adjudication, the
court must presume all facts alleged in the petition as true and dismiss “‘only in
the unusual case in which plaintiff includes allegations that show on the face of
the complaint that there is some insuperable bar to relief.’” But neither party’s
proffered interpretation is persuasive.
Specifically, Ponsaran’s assertion that the court must treat the allegations
of the petition as true, even when they are disputed, renders meaningless the
first part of RCW 26.26A.440(3)(c). That part expressly contemplates that when
there is a dispute material to the issue of standing, the court will “determine [the]
disputed facts” at an expedited hearing—not just accept the veracity of the
petitioner’s allegations. Furthermore, and as discussed, the purpose of the initial
inquiry required under RCW 26.26A.440(3)(c) is to impose “a heightened
standing requirement.” UPA (2017) § 609 cmt. (emphasis added). But treating
the initial inquiry as no more than a CR 12(b)(6) analysis hardly amounts to
imposing a heightened requirement. For these reasons, we reject Ponsaran’s
contention that the analysis under RCW 26.26A.440(3)(c) is equivalent to a
CR 12(b)(6) analysis.
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No. 80497-9-I/13
But for the following reasons, we also reject Anker’s contention that the
petitioner must initially prove all seven elements of de facto parentage to the
extent they are disputed and that any dispute as to any element is therefore
“material to the issue of standing.”
First, “[d]ifferent statutory language should not be read to mean the same
thing: ‘[w]hen the legislature uses different words in the same statute, we
presume the legislature intends those words to have different meanings.’” Ass’n
of Wash. Spirits & Wine Distribs. v. Wash. State Liquor Control Bd., 182 Wn.2d
342, 353, 340 P.3d 849 (2015) (second alteration in original) (quoting In re Pers.
Restraint of Dalluge, 162 Wn.2d 814, 820, 177 P.3d 675 (2008) (Sanders, J.,
dissenting)). Therefore, because the legislature used the phrase “the
requirements of [RCW 26.26A.440](4)(a) through (g)” in one part of the statute
but the phrase “the issue of standing” in another, then “facts material to the issue
of standing” must mean something different than “facts material to the
requirements of RCW 26.26A.440(4)(a) through (g).”
Second, we favor interpretations that give effect to every part of a statute
over those that render parts of the statute redundant. See Parents Involved in
Cmty. Sch. v. Seattle Sch. Dist. No. 1, 149 Wn.2d 660, 685, 72 P.3d 151 (2003)
(“If at all possible, we are required to ‘give effect to every word, clause and
sentence in a statute,’ leaving no part superfluous.” (quoting Cox v. Helenius,
103 Wn.2d 383, 387, 693 P.2d 683 (1985))). To that end, the statute
contemplates that if a petition proceeds to a full adjudication, then at the
adjudicative stage, the petitioner will be required to prove all seven elements of
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No. 80497-9-I/14
de facto parentage by a preponderance of the evidence. RCW 26.26A.440(4).
Requiring the petitioner to prove the same seven elements to the same standard
of proof just to proceed to the adjudicative stage would render the full
adjudication redundant.5
In short, RCW 26.26A.440(3)(c), which requires the court to make a
threshold determination as to whether the verified pleadings present “disputed
facts material to the issue of standing,” is ambiguous with regard to when a
disputed fact is “material to the issue of standing.” And neither party’s proffered
5 To be sure, Anker’s contention appears consistent with the uniform
statute, whose comments provide that ”[a]t the standing stage, . . . the
requirements may be proved by only a preponderance of the evidence.” See
UPA (2017) § 609 cmt. But although RCW 26.26A.440 substantially conforms to
the uniform statute, it does differ from it in one significant respect: While
Washington’s version requires proof by only a preponderance of the evidence at
the adjudicative stage, the uniform statute requires proof by “clear-and-
convincing evidence.” Compare UPA (2017) § 609(d) with RCW 26.26A.440(4).
In other words, unlike the Washington statute, the uniform statute contemplates a
two-tiered approach, applying one standard of proof at the standing stage and a
higher standard of proof at the adjudicative stage.
Indeed, it was for this reason that in interpreting the Maine statute on
which the uniform statute is based, the Maine Supreme Court decided to apply
the preponderance-of-the-evidence standard at the standing stage. See Davis v.
McGuire, 2018 ME 72, ¶ 26, 186 A.3d 837, 845. (“To require a petitioner to
prove at a preliminary hearing the same elements and to the same standard of
proof that govern the plenary hearing would render the latter duplicative.”); see
also UPA (2017) § 609 cmt. (“This section is modeled on provisions that were
recently enacted in Delaware and Maine.”).
We presume that by rejecting the clear-and-convincing standard at the
adjudicative stage and requiring instead that the petitioner prove all seven
elements by a preponderance of the evidence at that stage, our legislature also
envisioned that the petitioner would not be required to prove the same seven
elements to the same standard of proof at the standing stage. Cf. Lundberg ex
rel. Orient Found. v. Coleman, 115 Wn. App. 172, 177-78, 60 P.3d 595 (2002)
(“[W]hen the model act in an area of law contains a certain provision, but the
Legislature fails to adopt such a provision, our courts conclude that the
Legislature intended to reject the provision.”).
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No. 80497-9-I/15
interpretation of the statute is persuasive.6
That said, the comments to the uniform statute provide guidance with
regard to the legislative intent behind the statute. See Kelsey Lane Homeowners
Ass’n v. Kelsey Lane Co., 125 Wn. App. 227, 241 n.38, 103 P.3d 1256 (2005)
(court may look to uniform act’s official comments to determine legislative intent
where Washington statute substantially conforms to uniform act). Specifically,
the comments provide that the purpose of the de facto parentage statute is to
“ensure[ ] that individuals who form strong parent-child bonds with children with
the consent and encouragement of the child’s legal parent are not excluded from
a determination of parentage simply because they entered the child’s life
sometime after the child’s birth.” UPA (2017) § 609 cmt. At the same time, the
statute imposes a heightened standing requirement “to ensure that permitting
proceedings by de facto parents does not subject parents to unwarranted and
unjustified litigation.” UPA (2017) § 609 cmt. In keeping with these declarations
of purpose, we conclude that under RCW 26.26A.440(3)(c), whether a fact is
“material to the issue of standing” must be determined through the lens of
whether continued litigation would be “unwarranted and unjustified” in light of the
underlying purpose of the de facto parentage. Accordingly, we must consider
what makes litigation “unwarranted and unjustified” in the context of de facto
6 Anker at times relies on the mandatory forms and, in particular, the form
summons, form “FL Parentage 340,” to support her contention that “in order for a
case to move forward to trial, a petitioner must meet all seven factors as an initial
inquiry.” The form summons does state that “[t]he case will end at Step 1 unless
the court finds that Petitioner, more likely than not, meets the requirements for a
de facto parent.” But “[t]he law must drive the forms, not vice versa.” In re
Marriage of Allen, 78 Wn. App. 672, 679, 898 P.2d 1390 (1995).
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parentage. Neither party points us to any legislative history to illuminate this
issue. Ponsaran, however, contends that we may look to the common law
origins of the de facto parentage doctrine for guidance, and we agree.
Specifically, where a statute is ambiguous, and “in the absence of an
indication from the Legislature of an intention to overrule the common law, new
legislation will be presumed consistent with prior judicial decisions.” State v.
Bushnell, 38 Wn. App. 809, 810-11, 690 P.2d 601 (1984). To this end, the
official comments to the uniform statute acknowledge that the uniform statute
“reflects trends in state family law.” UPA (2017) § 609 cmt. (emphasis added)
(citing, among other cases, In re Parentage of L.B., 155 Wn.2d 679, 122 P.3d
161 (2005)). The comments also state that the statute’s substantive
requirements are based on factors developed under the common law de facto
parentage doctrine and, thus, “a court may look to those common law decisions
for guidance.” See UPA (2017) § 609 cmt. Therefore, we look to prior judicial
decisions regarding de facto parentage for guidance as to what constitutes
“unwarranted and unjustified litigation” in the context of a de facto parentage
proceeding. Cf. RCW 4.04.010 (“The common law, so far as it is not inconsistent
with the Constitution and laws . . . of the state of Washington . . . , shall be the
rule of decision in all courts of this state.”); see also L.B., 155 Wn.2d at 689
(“Washington courts have . . . construed [RCW 4.04.010] to permit the adaptation
of the common law to address gaps in existing statutory enactments.” (emphasis
omitted)).
L.B., in which our Supreme Court first recognized an equitable cause of
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No. 80497-9-I/17
action for de facto parentage, is instructive. In L.B., Page Britain and Sue Ellen
Carvin moved in together in 1989 after dating for several months. 155 Wn.2d at
682. Five years later, the couple decided to have a child and artificially
inseminated Britain with semen donated by a male friend. L.B., 155 Wn.2d at
683. A girl, L.B., was born in 1995. L.B., 155 Wn.2d at 684. “For the first six
years of L.B.’s life, Carvin, Britain, and L.B. lived together as a family unit and
held themselves out to the public as a family.” L.B., 155 Wn.2d at 684. “Carvin
and Britain shared parenting responsibilities, with Carvin actively involved in
L.B.’s parenting.” L.B., 155 Wn.2d at 684. When L.B. was about six years old,
Britain and Carvin ended their relationship, and in 2002, when L.B. was seven,
Britain unilaterally terminated all of Carvin’s contact with L.B. L.B., 155 Wn.2d at
684-85. Carvin filed suit and sought, among other things, recognition as a de
facto parent to L.B. L.B., 155 Wn.2d at 685.
At the time L.B. was decided, no statutory path to de facto parentage
existed under Washington law. Thus, when the case ultimately reached our
Supreme Court, a question before the court was whether Washington recognized
a common law cause of action for de facto parentage. L.B., 155 Wn.2d at 688.
The court ultimately held that it did. L.B., 155 Wn.2d at 707.
In doing so, the court was guided by the principle that children have an
interest in maintaining their relationships with those who are unequivocally a part
of their “family”—even “[i]n the face of . . . evolving notions of what comprises a
family unit.” L.B., 155 Wn.2d at 687. For example, the court first reviewed
existing cases and observed that they “support the proposition that Washington
17
No. 80497-9-I/18
common law recognizes the significance of parent-child relationships that may
otherwise lack statutory recognition.” L.B., 155 Wn.2d at 693. The court also
observed that existing cases “make clear that individuals may comprise a legally
cognizable family through means other than biological or adoptive.” L.B., 155
Wn.2d at 693. The court then looked to legislative pronouncements on custody
and visitation and observed that in the custody context, “with the paramount
considerations of the child properly at the center of such disputes,” custody
awards were sometimes made “to persons not biologically related to the child,
but who nevertheless have unequivocally ‘parented’ them.” L.B., 155 Wn.2d at
698-99. And in the visitation context, “[t]he legislature’s apparent intent behind
Washington’s current visitation statutes reveals a strong presumption in favor of
parental involvement, fostering and protecting a child’s significant relationships.”
L.B., 155 Wn.2d at 700. In other words, legislative enactments, consistent with
the common law, also recognized a child’s interest in maintaining relationships
with individuals who have unequivocally parented them, whether or not those
individuals would traditionally have been recognized as part of the child’s family
unit. See L.B., 155 Wn.2d at 701.7 Finally, the court was persuaded by a
7 Although L.B. examined the 2002 version of the WUPA, these same
principles remain true under the current version. See, e.g., RCW 26.26A.060
(providing that provisions applicable to a father-child relationship also apply to a
mother-child relationship and vice versa); RCW 26.26A.105 (“A parent-child
relationship extends equally to every child and parent, regardless of the marital
status of the parent”); Memorandum from the Uniform Parentage Act Drafting
Comm. to Uniform Law Comm’rs 3 (June 9, 2017),
https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?
DocumentFileKey=4cba0e51-85bd-98cd-4aa6-b5c7b3fe3c55&forceDialog=0
[https://perma.cc/HG4F-SM42] (describing protection of “established parent-child
relationships” as a “core purpose” of UPA (2017)).
18
No. 80497-9-I/19
number of decisions from states that had recognized de facto parentage and, in
particular, In re Custody of H.S.H.-K., 193 Wis. 2d 649, 533 N.W.2d 419 (1995),
and E.N.O. v. L.M.M., 429 Mass. 824, 711 N.E.2d 886 (1999). In each of those
cases, as noted by the L.B. court, the parties held themselves out as a family unit
and actively coparented the child. See L.B., 155 Wn.2d at 702 (observing that in
H.S.H.-K., the parties “gave the child names honoring the families of both
partners, held themselves out to the public as a family unit, and actively
coparented the child until their relationship ended”), 704 (observing that “E.N.O.’s
holding principally rested on its conclusion that ‘recognition of de facto parents is
in accord with notions of the modern family,’ and it is the actual family unit that
should ultimately be afforded respect” (citation omitted) (quoting E.N.O., 711
N.E.2d at 891)).
In short, implicit in L.B.’s recognition of the de facto parentage doctrine is
that a child’s interests are served when individuals who have unequivocally
parented the child as part of the child’s “family unit” have the opportunity to
establish that extending parental privileges to them would be in the child’s best
interests. Indeed, and although L.B. did not directly address the issue of
standing, the court had little trouble concluding that Carvin, who lived with Britain
and L.B. as a “family unit” for the first six years of L.B.’s life, shared parenting
responsibilities with Britain, was named as a parent on L.B.’s school records, and
was referred to by L.B. as “mama,” should be allowed on remand to prove that
she was a de facto parent. L.B., 155 Wn.2d at 684, 712.
At the same time, the L.B. court expressed an important limitation that is
19
No. 80497-9-I/20
relevant to our analysis of when litigation is “unwarranted and unjustified” in the
context of de facto parentage. Specifically, after recognizing a cause of action
for de facto parentage and setting forth its substantive requirements, the court
addressed Britain’s argument that granting Carvin parentage rights would
“violate[ ] Britain’s constitutionally protected liberty interest to care for and control
her child without unwarranted state intervention.” L.B., 155 Wn.2d at 709. The
court rejected this argument and also dismissed Britain’s fear that “‘teachers,
nannies, parents of best friends, . . . adult siblings, aunts, [ ] grandparents,’ and
every ‘third-party . . . caregiver’ will now become de facto parents.” L.B., 155
Wn.2d at 712 (alterations in original). In doing so, the court explained, “Critical to
our constitutional analysis here, a threshold requirement for the status of the de
facto parent is a showing that the legal parent ‘consented to and fostered’ the
parent-child relationship.” L.B., 155 Wn.2d at 712. That is, “[t]he State is not
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; a status that
can be achieved only through the active encouragement of the biological or
adoptive parent by affirmatively establishing a family unit with the de facto parent
and child or children that accompany the family.” L.B., 155 Wn.2d at 712
(emphasis added).
In short, although L.B. did not directly address the issue of standing, it
provides two important guideposts with regard to whether subjecting a legal
parent to a full adjudication would result in “unwarranted and unjustified
litigation.” First, to ensure that de facto parentage litigation does not result in
20
No. 80497-9-I/21
unlawful interference with legal parents’ constitutionally protected interest in the
care and custody of their children, the petitioner must at least make a threshold
showing that a legal parent consented to and fostered a parent-child relationship
between the petitioner and the child. Second, to balance legal parents’ interests
against children’s interests in preserving their relationships with those who have
unequivocally parented them,8 a petition should be allowed to proceed to a full
adjudication if, but only if, the petitioner makes a threshold showing that he or
she was a member of the child’s family unit and unequivocally parented the child.
We conclude that these guideposts are the touchstones for whether a disputed
fact is “material to the issue of standing” under RCW 26.26A.440(3)(c).
Specifically, to establish standing to proceed to a full adjudication of de facto
parentage under RCW 26.26A.440, the petitioner must establish that he or she
unequivocally parented the child as part of the child’s family unit and that a legal
parent consented to and fostered a parent-child relationship between the
petitioner and the child. It follows then that a disputed fact is material to the issue
8 As one commentator has observed, there is more at stake than just
continuity when it comes to the child’s interests:
Treating individuals who are functioning and relied upon as
parents as legal parents is a critical advancement from the child’s
perspective. Recognizing such a person as a legal parent means
that the child is entitled to all of the protections that a child is
normally entitled to receive from and through a parent. This
includes, for example, the right to receive Social Security and
workers’ compensation benefits in the event the parent becomes
disabled or dies. And, of particular importance, it also means that
the parent has the same obligation to support the child as any other
legal parent.
Courtney G. Joslin, De Facto Parentage and the Modern Family, 40 FAM. ADVOC.
31, 33 (2018).
21
No. 80497-9-I/22
of standing if it is material to whether the petitioner unequivocally parented the
child as part of the child’s family unit or whether a legal parent consented to and
fostered a parent-child relationship between the petitioner and the child.
Our conclusion is supported by another case from our Supreme Court, In
re Custody of B.M.H., 179 Wn.2d 224, 315 P.3d 470 (2013). There, in reversing
the dismissal of a stepfather’s petition for de facto parentage, the court stated,
“Here, where it is alleged that [the petitioner] entered a child’s life at birth
following the death of that child’s second biological parent, and undertook an
unequivocal and permanent parental role with the consent of all existing
parents . . . , justice prompts us to apply the de facto parent test.” B.M.H., 179
Wn.2d at 244-45 (emphasis added). In other words, in concluding that the
petitioner should be allowed to proceed to a full adjudication, the B.M.H. court,
like the L.B. court, focused on the fact that the petitioner, who as the child’s
stepfather had undisputedly been a part of the “family unit,” had undertaken an
unequivocal parental role with the consent of a legal parent. Indeed, as the court
observed in B.M.H., allowing a de facto parentage petition to proceed to a full
adjudication when these threshold requirements have been met “balances the
rights of biological parents, children, and other parties.” B.M.H., 179 Wn.2d at
244.
Our conclusion also is consistent with the underlying purpose of the de
facto parentage statute, which, again, is to “ensure[ ] that individuals who form
strong parent-child bonds with children with the consent and encouragement of
the child’s legal parent are not excluded from a determination of parentage
22
No. 80497-9-I/23
simply because they entered the child’s life sometime after the child’s birth.”
UPA (2017) § 609 cmt.; cf. Courtney G. Joslin, Preface to the UPA (2017), 52
FAM. L. Q. 437, 455 (2018) (explaining that de facto parentage provision was
added to “address th[e] gap in protection” left when the drafters of the UPA
(2017) amended the provision affording a presumption of parentage to those who
resided in the same household as the child by limiting it to those who resided
with the child from birth).9 Specifically, denying a full adjudication to an individual
who can show that he or she was part of the family unit, unequivocally parented
the child, and developed a parent-child relationship with the consent of a legal
parent would be contrary to the underlying purpose of the statute and, indeed,
the UPA itself. See Memorandum from the Uniform Parentage Act Drafting
Comm. to Uniform Law Comm’rs, supra, at 3 (“New Section 609 . . . expressly
recogniz[es] de facto parentage by statute. This is consistent with the current
trend and is consistent with a core purpose of the UPA, which is to protect
established parent-child relationships.” (emphasis added)).
Finally, our conclusion is consistent with the reality that not all of the seven
substantive elements of de facto parentage are susceptible to adjudication on the
“expedited basis” that RCW 26.26A.440(3)(c) contemplates when there are
issues of fact in dispute. Most notable in this regard is the final element, which
requires the petitioner to prove that “[c]ontinuing the relationship between the
[petitioner] and the child is in the best interest of the child.”
RCW 26.26A.440(4)(g). “The criteria for determining the best interests of the
9 In the WUPA, this presumption is set forth in RCW 26.26A.115(1)(b).
23
No. 80497-9-I/24
child are varied and highly dependent on the facts and circumstances of the case
at hand.” McDaniels v. Carlson, 108 Wn.2d 299, 312, 738 P.2d 254 (1987).
Therefore, determining what is in the best interests of the child often requires
substantial discovery, the involvement of neutral experts such as parenting
evaluators, additional evaluations such as substance abuse evaluations,
domestic violence assessments, and psychological evaluations, a determination
of whether a guardian ad litem should be appointed and, if so, time for the
guardian ad litem to fulfill his or her duties and report back to the court. Cf.
RCW 26.26A.485(2) (“The court shall appoint a guardian ad litem . . . to
represent a child in a proceeding under RCW 26.26A.400 through 26.26A.515, if
the court finds that the interests of the child are not adequately represented.”);
GALR 2 (setting forth the responsibilities of a guardian ad litem). Indeed, if the
child’s best interests were considered material to the issue of standing, a hearing
to resolve disputed facts would be required in nearly every contested case, as it
is unlikely a respondent who contests the petition would agree that establishing
de facto parentage would be in the child’s best interests.
But this is not to say that the child’s best interests go unaccounted for in
the initial inquiry into whether a case may proceed to a full adjudication. Rather,
and as discussed, children have a recognized interest in maintaining their
relationships with those who have unequivocally parented them. See L.B., 155
Wn.2d at 698-99 (observing that “with the paramount considerations of the child
properly at the center of such disputes, . . . courts have not hesitated to exercise
their common law equitable powers to award custody of minor children, at times
24
No. 80497-9-I/25
making such awards to persons not biologically related to the child, but who
nevertheless have unequivocally ‘parented’ them”). Therefore, allowing an
individual to proceed to a full adjudication upon making a threshold showing that
he or she has parented the child as part of the child’s family unit and with a legal
parent’s consent in fact serves the child’s interests. At the same time, allowing
only those individuals who have made that threshold showing to proceed to a full
adjudication “balances the rights of biological parents, children, and other
parties.” B.M.H., 179 Wn.2d at 244. As a result of this balancing, disputes
“material to the issue of standing” will typically consist of disputes about the
remaining substantive elements of de facto parentage, such as whether and for
how long the petitioner resided with the child (so as to rule out individuals who
are not part of the child’s family unit), whether the petitioner expected financial
compensation (so as to rule out temporary caregivers like babysitters), whether
the petitioner held the child out as his or her own (so as to rule out relationships
that are not parental in nature), and the extent to which a legal parent fostered
the parent-child relationship (so as to protect the legal parent’s constitutionally
protected interest in the care and custody of the child). Indeed, contrary to
Anker’s contention that “without any review of the seven criteria prior to trial, . . .
movants could harass nonmovants with useless, time-consuming, expensive,
and stressful hearings,” our interpretation of RCW 26.26A.440(3)(c) still imposes
significant limitations on the types of individuals who can successfully move their
petitions forward to a full adjudication.
In summary, we conclude that the de facto parentage statute requires the
25
No. 80497-9-I/26
following with regard to determining whether a petition may proceed to a full
adjudication: First, the petitioner must file a verified petition alleging specific
facts supporting each of the seven elements of de facto parentage. Next, an
adverse party may file a response, which must also be verified. The court must
then determine, based on the verified petition and any verified response, whether
there exist “disputed facts material to the issue of standing,” i.e., disputed facts
material to whether the petitioner unequivocally parented the child as part of the
child’s family unit and whether a legal parent consented to and fostered a parent-
child relationship between the petitioner and the child. If the court determines
that there are no disputed facts material to the issue of standing, then the court
must allow the petition to proceed to a full adjudication unless the petition does
not allege sufficient facts, if proved, to satisfy each of the seven substantive
elements of de facto parentage by a preponderance of the evidence. If, on the
other hand, the court determines that there are disputed facts material to the
issue of standing, the court must hold an expedited hearing to determine whether
the petitioner has established by a preponderance of the evidence that he or she
unequivocally parented the child as part of the child’s family unit and whether a
legal parent consented to and fostered a parent-child relationship between the
petitioner and the child. If not, the court must dismiss the petition. Otherwise,
the court must allow the petition to proceed to a full adjudication unless the facts
as determined at the hearing, together with the undisputed facts alleged in the
petition, are insufficient, even if proven, to satisfy each of the seven substantive
elements of de facto parentage by a preponderance of the evidence.
26
No. 80497-9-I/27
Our conclusion today properly balances the interests of children and
would-be de facto parents in maintaining their relationships with those with whom
they have developed a strong parent-child bond, against legal parents’
“fundamental right to make decisions concerning the care, custody, and control
of their children” without unwarranted interference. B.M.H., 179 Wn.2d at 234.
Additionally, and unlike the interpretations advanced by the parties, it gives effect
to each part of RCW 26.26A.440(3)(c), which plainly requires the petitioner to do
something more than allege a prima facie case of de facto parentage but also
requires something other than proof, at the outset, of each substantive element
of de facto parentage.
Dismissal of Ponsaran’s Petition
Now that we have considered the process prescribed by
RCW 26.26A.440(3)(c), we apply it to the trial court’s dismissal of Ponsaran’s
petition. Ponsaran contends that the trial court erred by resolving disputed facts
without a hearing, and we agree.
As discussed, RCW 26.26A.440(3)(c) provides that if there are disputed
facts material to the issue of standing, the court must hold a hearing to determine
those facts. Although the statute is clear that the hearing must occur on an
expedited basis, it does not specify how such a hearing should proceed.
To this end, we acknowledge that courts may “adopt any suitable mode of
proceeding to carry out a statutory directive where none is specifically pointed
out and jurisdiction is otherwise conferred upon the court.” Abad v. Cozza, 128
Wn.2d 575, 588, 911 P.2d 376 (1996); RCW 2.28.150. That said, any such
27
No. 80497-9-I/28
procedure must comport with principles of due process, which require “that a
party receive proper notice of proceedings and an opportunity to present his
position before a competent tribunal.” Parker v. United Airlines, Inc., 32 Wn.
App. 722, 728, 649 P.2d 181 (1982). Accordingly, we hold that if a court
determines that a hearing is necessary under RCW 26.26A.440(3)(c), the court
must at a minimum provide notice to the parties. Furthermore, because the
stated purpose of the hearing is to “determine disputed facts,”
RCW 26.26A.440(3)(c), the court must also give parties an opportunity to present
relevant evidence and argument to the court with regard to the disputed facts at
issue.10
Here, it is clear from the court’s order, and specifically its entry of findings,
that the court concluded there were disputed facts material to the issue of
standing. Yet the court did not convene a hearing to resolve those facts. This
was error.
Anker disagrees and contends that the trial court did hold a hearing but
that the hearing simply took place without oral argument, consistent with the
notice of hearing that Ponsaran filed with his request for review. Specifically,
Anker asserts that “given that Mr. Ponsaran filed a notice of hearing and
additional declarations/information, he effectively turned the review into a motion,
inviting a response from Ms. Anker pursuant to CR 8.” Anker asserts further that
10 Although we need not decide today whether an evidentiary hearing with
oral testimony is required in all cases, we note that a trial court may abuse its
discretion by not holding an evidentiary hearing when the verified pleadings
present an issue of fact whose resolution requires a determination of witness
credibility. Woodruff v. Spence, 76 Wn. App. 207, 210, 883 P.2d 936 (1994).
28
No. 80497-9-I/29
because Ponsaran noted his “motion” for consideration without oral argument,
the trial court was justified in dismissing Ponsaran’s petition based “on the
information provided by Mr. Ponsaran in his Petition, declarations, and
supplementary evidence, on the Response to the Petition and declarations from
Ms. Anker, and the reply documents from Mr. Ponsaran.”
Anker’s contentions fail for two reasons. First, CR 8 is addressed to
pleadings, not motions, and Anker’s suggestion that CR 8 provides a mechanism
for converting the review prescribed by RCW 26.26A.440(3)(c) into a motion is
unpersuasive. Second, the expedited hearing contemplated by
RCW 26.26A.440(3)(c) is initiated by the court, not the parties. Accordingly,
once the trial court concluded that there were disputed facts material to the issue
of standing, it was required to provide notice of an expedited hearing and,
consistent with due process, an opportunity to submit evidence and argument
relevant to the issues to be decided at the hearing. Indeed, even the mandatory
form that Ponsaran used to request a review under RCW 26.26A.440(3)(c)
states, “Review will be ex parte unless the court orders an expedited hearing.
You will receive notice of any hearing.” (Emphasis added.) Therefore,
Ponsaran’s notice of hearing was unnecessary and, in any event, not a substitute
for notice from the court. Similarly, Ponsaran’s (and Anker’s) filing of additional
evidence was not a substitute for an opportunity to present evidence relevant to
the specific issues to be considered at such a hearing.11 Therefore, we reject
11
As discussed, under RCW 26.26A.440(3)(c), the trial court is to
determine whether there is a dispute material to the issue of standing based
29
No. 80497-9-I/30
Anker’s contention that the procedure followed by the court complied with the
procedure required under RCW 26.26A.440(3)(c).12
Ordinarily, under these circumstances, we would remand to the trial court
for an expedited hearing to determine the disputed facts material to the issue of
standing. But here, we remand for a full adjudication because the court also
erred as a matter of law in concluding that Ponsaran’s petition should be
dismissed.
Specifically, and as discussed, the first step of the court’s analysis under
RCW 26.26A.440(3)(c) is to determine whether, based on the verified petition
and any verified response, there is a disputed fact material to the issue of
standing. If not, the trial court must move the petition forward to a full
adjudication unless it fails to allege sufficient facts to satisfy each substantive
element of de facto parentage by a preponderance of the evidence. These
determinations—whether there are disputed facts material to standing and
whether the petition alleges sufficient facts with regard to each element—do not
solely on the verified pleadings. Accordingly, the trial court erred to the extent
that it considered additional materials in making this determination.
12 Anker also points out that Ponsaran did not set a review hearing until
some three weeks after the deadline set forth in the case scheduling order. We
need not decide whether the review hearing was timely to resolve this appeal.
But we observe that the record does not, as Anker asserts, show that Ponsaran
was untimely. Specifically, although the case scheduling order set a deadline of
July 16, 2019, for a review hearing, it also states that the review hearing date
must be at least 20 days from the date of service if the respondent was served in
person in Washington, 60 days if the respondent was served outside of
Washington or by publication, or 90 days if the respondent was served by mail.
But the record does not reveal when or how Williams, the children’s biological
father, was served. Accordingly, even if the timeliness of the review hearing
were relevant to the issues on appeal, Anker failed to establish on the record that
the review hearing was untimely.
30
No. 80497-9-I/31
call for the trial court to weigh evidence. Accordingly, as an appellate court, we
are in as good a position as the trial court to make these determinations based
on the verified pleadings, and we therefore review them de novo. See
Progressive Animal Welfare Soc’y v. Univ. of Wash., 125 Wn.2d 243, 252, 884
P.2d 592 (1994) (“‘[W]here . . . the trial court has not seen nor heard testimony
requiring it to assess the credibility or competency of witnesses, and to weigh the
evidence, nor reconcile conflicting evidence, then on appeal a court of review
stands in the same position as the trial court in looking at the facts of the case,
and should review the record de novo.’” (quoting Smith v. Skagit County, 75
Wn.2d 715, 718, 453 P.2d 832 (1969))).
Here, the undisputed facts in Ponsaran’s petition establish the following
narrative regarding Ponsaran’s relationship with J.D.W. and J.O.W.:
Ponsaran has known J.D.W. since he was 18 months old and J.O.W.
since her birth. Ponsaran and Anker lived together with J.D.W. and J.O.W. from
December 2012 (when J.O.W. was about 3 months old and J.D.W. was about 21
months old) until May 2016—a period of 3 1/2 years. They also lived together for
a number of months in 2017. Even when Ponsaran was not living with Anker and
the children, he spoke with them daily.
During the time that Ponsaran, Anker, and the children lived together,
Ponsaran bonded with the children. The children call Ponsaran “daddy.” Anker
was aware that the children refer to Ponsaran as their father, and Anker herself
referred to Ponsaran as the children’s “dad” when speaking to the children or to
third parties. Anker has spoken positively about Ponsaran as a dad in various
31
No. 80497-9-I/32
cards and postings, and both Ponsaran and Anker have posted photos of
Ponsaran with the children with references to Ponsaran as “daddy.”
When the children were young, Ponsaran assisted with meals, baths, toilet
training, and the children’s bed-time routine regardless whether Ponsaran and
Anker were living together. As the children grew older, Ponsaran took them to
and from school and daycare, scheduled and took them to activities, and
accompanied them at the hospital when that was necessary. Ponsaran
undertook these activities without expectation of being paid. Ponsaran has been
registered at the children’s school as their father and was listed as their father
when they signed up for events. He taught J.D.W. to ride a bike and took him to
his first Mariners and Seahawks games. Ponsaran and J.D.W. have attended
many sporting events since then. Ponsaran also signed J.D.W. up for and
attended games and practices for soccer, football, and jujitsu. Ponsaran and
J.O.W. also do things together, such as pretend playing and going to the park
and the mall. Ponsaran has spent time with the children consistently since birth.
Until recently (as of the time the petition was filed), Anker encouraged Ponsaran
to spend time with the children, and Ponsaran spent between two and five nights
a week with them. Additionally, the children would spend an additional four
weeks per year with Ponsaran while Anker was on vacation.
These undisputed facts, if proven, plainly establish that Ponsaran was part
of the children’s family unit, that Ponsaran unequivocally parented them, and that
Anker consented to and fostered a parent-child relationship between Ponsaran
and the children. Indeed, Anker acknowledged in her response that she and
32
No. 80497-9-I/33
Ponsaran were in a relationship, that the children referred to Ponsaran as “Dad,”
and that Ponsaran “enjoys the idea of being a fun dad, spoiling them [by] buying
toys and taking them to do fun things.” Furthermore, Anker did not allege facts in
her verified response to place into dispute whether Ponsaran was part of the
family unit and unequivocally parented them with Anker’s consent and
encouragement. To be sure, Anker did state that she “disagree[d] with what
[Ponsaran] said about” each element of de facto parentage and asserted that
“[t]he relationship between [Ponsaran] and the children was not parental.” But
these general denials cannot be enough to create a dispute material to the issue
of standing—otherwise, anything but an agreed petition would require an initial
hearing. Indeed, even Anker does not contend that a general denial is enough to
create a dispute material to the issue of standing, acknowledging instead that
“[t]he facts the court is considering are those alleged in the petition vs. those
alleged in a response.” (Emphasis added.)
In short, Anker’s response, which focused not on whether Ponsaran had a
parent-child relationship with the children but on his motivations for developing
that relationship and his alleged faults as a parent, does not raise any disputes
material to the issue of standing. Furthermore, if proven at trial, the facts alleged
in Ponsaran’s petition are sufficient to establish the first six elements of de facto
parentage, i.e., that Ponsaran “resided with the child[ren] as a regular member of
[their] household for a significant period,” that he “engaged in consistent
caretaking of the child[ren],” that he “undertook full and permanent
responsibilities of a parent . . . without expectation of financial compensation,”
33
No. 80497-9-I/34
that he “held out the child[ren]” as his own, that he “established a bonded and
dependent” parental relationship with the children, and that “[a]nother parent . . .
fostered or supported the bonded and dependent relationship.”
RCW 26.26A.440(4)(a)-(f). And Ponsaran also alleged, with regard to the final
element—best interests of the children—that he is the only father the children
have known and that “[t]hey have no one else who has taken on that role a[n]d I
have been here for them [in] the past.” In other words, not only are there no
disputed facts material to the issue of standing, Ponsaran’s petition also alleges
sufficient facts that, if proven, establish each element of de facto parentage by a
preponderance of the evidence. For these reasons, the trial court erred by not
moving Ponsaran’s petition forward to a full adjudication under
RCW 26.26A.440(4).13
Anker disagrees, contending that the trial court properly dismissed
Ponsaran’s petition based on a failure of proof on the best interests element.
This contention fails for two reasons.
First, Anker’s contention relies on the proposition that the petitioner must
prove all seven elements of de facto parentage to proceed to a full adjudication.
But as we explained above in rejecting that proposition, the purpose of the initial
hearing is to resolve only those disputes “material to the issue of standing,” not to
13 Although we apply a de novo standard of review, we would reach the
same conclusion even under an abuse of discretion standard, i.e., that in light of
the uncontested allegations establishing that Ponsaran unequivocally parented
the children, was part of their family unit, and developed a parent-child
relationship with them with Anker’s consent and encouragement, it was an abuse
of discretion not to move Ponsaran’s petition forward to a full adjudication.
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determine whether the petitioner has established all seven elements of de facto
parentage. And although the petition must at least allege sufficient facts that, if
proven, would establish all seven elements of de facto parentage, including the
best interests element, the trial court is not required at the standing stage to
adjudicate all seven elements.
Second, and as discussed, Anker’s allegations about the children’s best
interests focused not on whether Ponsaran had developed a parent-child
relationship with the children, but rather on Ponsaran’s alleged motivations for
developing that relationship and his alleged faults as a parent. But “the perfect
parent is the exception and not the rule.” Todd v. Sup. Ct., 68 Wn.2d 587, 600,
414 P.2d 605 (1966) (Rosellini, C.J., dissenting). And inevitably, in cases where
a legal parent opposes a de facto parentage petition, the legal parent will call the
petitioner’s motivations, character, and parenting abilities into doubt. This, in
addition to the reasons already discussed, is another reason that a dispute about
the child’s best interests should not be considered material to the issue of
standing and should instead be adjudicated at trial. Here, the trial court erred not
only by resolving that dispute at the standing stage, but also by dismissing
Ponsaran’s petition based solely on its resolution of that dispute.
We are cognizant that Anker successfully petitioned for a protection order
against Ponsaran. But her response to Ponsaran’s de facto parentage petition
alleged only that Ponsaran “stalked my children at school after I asked him not to
have any contact with me.” A protection order—and particularly one sought to
prevent contact between the very parties at the center of a de facto parentage
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proceeding until a determination of parentage can be made—generally will be
insufficient to warrant dismissal at the initial standing inquiry. Indeed, the WUPA
itself now expressly contemplates that protection orders may be necessary in
connection with de facto parentage proceedings, see RCW 26.26A.470(3), and
the protection order ultimately entered by the court was expressly made subject
to any further order resulting from the de facto parentage proceeding.
This is not to say that we take concerns about Ponsaran’s alleged
substance abuse and temperament lightly. But those concerns are not sufficient
in this case, given the undisputed allegations regarding the facts material to
standing, to deny Ponsaran (or the children) an opportunity for a full adjudication
of parentage. Instead, they must, and should, be examined at trial after an
opportunity to conduct discovery and investigation.14
As a final matter, Anker points out that “[w]hile it may have been the case
that under the test in L.B., the question of best interest of the child was
determined secondary to the determination of whether the de facto relationship
existed, that is no longer the correct procedure now that the legislature has
updated the UPA.” Therefore, she contends, “[i]t is not accurate that the court
must determine parentage first and then determine residential time/child support
14 To be sure, there may be cases where the response makes such grave
allegations about the petitioner that the court must consider the best interests of
the child, as part of the initial inquiry, to ensure that proceeding to trial would not
subject the legal parent to unwarranted and unjustified litigation. But those cases
will not be typical, and this was not one of those cases. Generally, and given the
weighty interests that children have in maintaining their relationships with those
who have unequivocally parented them, disputes about the child’s best interests
should be tested at trial with the benefit of discovery and input from experts and
third parties who have been involved in the children’s lives.
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No. 80497-9-I/37
based on the best interest of the child.” Anker is correct that under RCW
26.26A.440(4)(g), to be recognized as a de facto parent, the petitioner must
prove that continuing his or her relationship with the child is in the child’s best
interest. She also is correct that this requirement was not among the elements of
de facto parentage under L.B.15 But whether a petition can proceed to a full
adjudication is a different question than whether the petitioner should ultimately
be adjudicated a de facto parent. Accordingly, it does not follow from the fact
that best interests now must be proven to establish de facto parentage that the
petitioner must also prove best interests merely to proceed to a full adjudication.
Although the petitioner must allege specific facts to establish the best interests
factor, those facts must, as discussed, be tested at trial if the petition is allowed
to proceed.
Attorney Fees
Anker requests an award of attorney fees under RCW 26.26B.060, which
provides in relevant part, “The court may order that all or a portion of a party’s
reasonable attorney’s fees be paid by another party.” Anker contends that she is
entitled to an award of fees because she “has incurred significant attorney’s fees
in connection with this de facto action . . . and has incurred even more in
connection with this appeal, which is causing a hardship for her and her
15 The L.B. court adopted the following four elements for de facto
parentage: “(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.” 155 Wn.2d at 708.
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children.”
But Anker is not the prevailing party on appeal, and she cites no authority
for the proposition that RCW 26.26B.060 supports an award of fees to a
nonprevailing party based on hardship. Cf. In re Marriage of Wendy M., 92 Wn.
App. 430, 441, 962 P.2d 130 (1998) (“The attorney fee provision governing
[parentage] proceedings, RCW 26.26.140 [now codified at RCW 26.26B.060] . . .
does not require consideration of need or ability to pay in making an award.”).
Accordingly, we deny her request for attorney fees.
We reverse and remand for a full adjudication pursuant to
RCW 26.26A.440(4).
WE CONCUR:
38